Football players may take the shots but who calls them?

Football remains the super power of European sport. The British public may have been going wild over England's performances in the Ashes Series, but Flintoff's heroics barely caused a ripple in mainland Europe. Football is the biggest sport and it continues to be big business. As the money involved continues to grow so does the power struggle between the player, the club and the national teams. The relationships become more complex and the law becomes more important.

The first 1,000 football [pounds sterling] transfer took place in the UK in 1905, and 100 years later the system is still under scrutiny. The professional footballer has tended to be treated as a unique category of workman throughout the world, being both an employee and a transferable commodity, but slowly the players have been using laws of employment in the National and European Courts to gain the upper hand. In England Jimmy Hill did it in 1961 when the maximum wage was abolished, George Eastham did it in 1963 when the retain and transfer system was ruled illegal, and of course in the late 90's Jean-Marc Bosman rocked the football empire throughout Europe by changing the balance of power forever.

Have the Clubs had enough? Are they fighting back? The UK is a fertile battleground. Chelsea are seeking compensation from Mutu following his sacking by the Club, and the authorities have heavily fined Ashley Cole (together with Chelsea and Mourinho) for recently meeting Chelsea without Arsenal's consent, to whom he was under contract. Was the Cole affair simply a tabloid feast, or will it have any long term consequences? Have the Clubs been protected by the decision or will the case further erode the Clubs' power?

Ashley Cole was found guilty of breaching Premier League Rule K5 which states that a Player under contract shall not directly or indirectly make any approach to another club without having obtained the prior written consent of the existing club to whom he is contracted.

Cole argued that rule K5 was an unlawful, and therefore unenforceable, restraint of trade. His argument was based on the fact that Rule K5 prevents him from (i) talking to another club about the possibility of that club making an offer to Arsenal for his transfer; and (ii) investigating whether another club would be interested in employing him after his Arsenal contract expires. In effect the claim was that the rule prevents an employee from being able to advance his career by considering alternative employment opportunities.

It has not been denied that the rule is capable of being a restraint of trade, but the Premier League did argue that the restraint was lawful, i.e. enforceable, as a result of being both limited and reasonable--it was in the public's interest so as to protect competitive integrity and contractual stability.

The original Disciplinary Commission found for the Premier League agreeing with the public interest argument. Symbolically the Commission concluded that "... we cannot escape the conclusion that if the restraint was removed, the number of transfers would increase and that the balance between players' agents and Premiership Clubs would tilt significantly in favour of agents (and their incomes). We consider this as a potent consideration".

Whilst the fine was reduced on appeal the guilty verdict was not overturned. And whilst the lawyers had their fun, Cole signed a new deal with Arsenal in any case. If nothing else, the Chelsea meeting may have helped Cole's bargaining position with Arsenal. Whilst the Club may have won the battle, a cynic might conclude that the player won the war.

What are the chances of the decision being overturned if Cole took it further to the Court of Arbitration for Sport for example? The Rules have evolved through collective negotiations involving the Leagues, player representatives (the PFA), and the governing body (the FA). A key aspect of such a collective bargaining agreement is that each interested party has to accept some bad to go with the good. If Rule K5 was to be amended to favour the players, would they be simply rejecting elements of the bad? It is impossible to guess which way a court would go, but it is important to point out that Cole still had 2 1/2 years left to run on his contract. The Committee which heard the original case didn't feel that its place was to "tinker" with the rules but did acknowledge that Rule K5 could be amended by a more appropriate body to take into account the "Shaka Hislop" example which was raised in evidence. Hislop's Portsmouth contract was due to expire on 29 June 2005, and at the time of the Cole hearing, Portsmouth had not decided whether to renew his contract or not. Under Rule K5 Hislop had to wait until the third Saturday of May before being able to contact other clubs without Portsmouth's consent. This left the 36 year old with just 5 weeks to find alternative employment in the event that Portsmouth did not renew. Hislop is reported to have stated "I do not see why I should go cap in hand to my current employer in order to ensure that I am still in a position of being able to support my family".

The positions of Cole and Hislop are clearly not only different on the pitch. The remaining term of their contracts is clearly a very important distinction.

Whilst the Hislop argument is indeed persuasive, how would any change work in practice if for example any player in his last year or 6 months of a contract was entitled to discuss a move to another club without his current club's consent? It is thought that any removal of the Rule may lead to shorter contracts, which may lead to destabilisation, and in fact a weakness of the players' position allowing clubs to jettison players with injuries or a lack of form. Questions of integrity would also be raised. The Committee itself reported that "if a player is playing against a team with whom he has contracted or is in the process of negotiating a contract, supporters might perceive (albeit erroneously) that he might be playing within himself ". This of course could be particularly problematic if relegation issues are at stake.

We may well find out what might happen by looking at the international stage. Whilst the Cole affair was subject to Domestic Rules, Fifa has recently changed its regulations which affect international transfers. From 1 July 2005 Article 18 of the new Fifa Regulations accepts that negotiations can take place between a player of one club with another club provided that (i) notice is given, and (ii) no new deal can actually be concluded unless the player has less than 6 months left on his existing deal.

This means that under the international rules a player could be playing in the Champions League Semi final against a team he is contracted to play for the following season.

Fifa imposes certain Regulations on national associations--one of those is that Article 18 should be incorporated from the 2007/8 season. Certainly incorporation will heal the illogical differences faced by a player who is the subject of a domestic transfer and a player who is subject to an international transfer, but will it lead to questions of integrity? Does Article 18 further erode the Club's position? Article 18 does seem to give the Players a little more freedom but had Article 18 been in force at the time of the Cole affair, he still wouldn't have been able to sign a contract with Chelsea, as his contract would have had longer than 6 months to run. Hislop on the other hand would have enjoyed more freedom than he did. The future is not clear yet and this issue may be one that has a way to run yet.

This article has so far simply focused on one aspect of the player/club relationship, and I am already out of space. There are many other facets of the player/club relationship that can be examined, just as there is a raft of issues which relate to the relationships between the player, club, and the national team. Should clubs be forced to release players to play for 45 minutes and risk injury in between the player, club, and the national team. Should clubs be forced to release players to play for 45 minutes and risk injury in international friendlies. Graeme Souness recently queried the logic and compared it to a company loaning someone a piece of machinery for it to be returned damaged. However, the most interesting recent issue arose recently in Germany where there were threats to exclude players from the national team if they did not wear German FA sponsor adidas branded boots. Huge potential conflicts arise here, not least concerning the players' personal boot sponsors, but this issue warrants an article in its own right. The power struggles go on.

Oliver Hunt *

* Partner onside law. Erico House I 93-99 Upper Richmond Road I London SW15 2TG I t: [phone] I f: [phone] I m: [phone] I web: www.onsidelaw.co.uk onside law is a commercial law firm specialising in the sport, fashion and entertainment sectors, offering a blend of genuine industry experience and technical expertise from the City.